Whether Gemcon Ltd. Company is a construction company or manufacturer or producer.
That it envisages a construction organization but apparently Gemcon Ltd. is neither engaged in construction nor maintenance of buildings, roads, highways and bridges. True it is that it manufactures SPC electric poles which hold electric wires for transporting electricity but such function would not bring it within the ambit of the word Rather, the manufacture of SPC electric poles with cement, sand, stone, iron etc brings the company within the definition of National Board of Revenue & Ors Vs. Lt. Col. Kazi Shahid Ahmed 20 BLT (AD) 89.

The VAT Act requires the service recipient to pay an amount of 15% VAT on all services received in Bangladesh on the basis of the value mentioned in section 5. As per section 3 (গ) of the VAT Act 1991, in case of providing service, the service providing entity was required to deposit the said applicable amount of 15% VAT to the government exchequer. Section 5(4) of the said Act provides that in case of providing service, the VAT will be charged on the total receivable amount (‘সর্বমোট প্রাপ্তির উপর’). As such, a conclusion may be drawn if section 3 (গ) is read along with section 5 (4) together with the definition of পণ’ (consideration) as given in section 2 (ণ ণ) of the VAT Act that VAT is always assessed or calculated on the basis of the total value receivable or received. ...Orascom Telecom Bangladesh Ltd Vs. BTRC & ors, (Civil), 7 SCOB [2016] HCD 115 ....View Full Judgment

(VAT) Second Schedule of the Act
Section 2 of মূল্য সংযোজন কর আইন, (VAT) defines the words "manufacturer or "producer" (প্রস্ততকারক বা উৎপাদক) as doing doing certain specific acts of production while the second schedule of the said Act defines the word" নিরমান সংস্থা" doing some Acts in connection with the manufacture or production. Appellant Gemcon is neither engaged in construction nor maintenance of buildings, roads, highways and bridges. Manufacture of SPC electric poles for transporting electricity docs not bring it neither under the ambit of the word " যোগযোগ মাধ্যম" and best it brings it within the definition of "প্রস্ততকারক". In such view of the matter, the appellant is not entitled to the special financial benefit available to the manufacturer or producer.
National Board of Revenue and others -Vs- Lt. Col. Kazi Shahid Ahmed (Retd.) 1 ALR (AD)215

read with Rule-31
Whether the joint-venture firm was not liable to pay any VAT under the Act.
Held: Zero VAT can only be levied on the services rendered by the joint-venture firm under the contract in respect of the foreign currency portion of the contract price.
National Board of Revenue Vs. Hyundai Engineering & Construction Company Ltd. & Ors. 8BLT(AD) 85

In view of sections 3 & 5 of the VAT Act 1991, the basic scheme of the VAT Act is that the VAT is calculated at the rate of 15% on the total value receivable and is always added to the total consideration value instead of deduction. Under no circumstances; it can be deducted or subtracted from the total value. In order to comply with the basic scheme of VAT Act and VAT Rules made thereunder, the BTRC lawfully mentioned the words ‘without any deduction’ in its memo dated 17 October 2011 – which means that the demanded money has to be paid by the petitioner to BTRC as it is, and, while calculating the VAT to be paid at source, the petitioner will have to add an amount calculating at the rate of 15% of the total demanded amount as VAT, withhold the same and deposit it in the exchequer directly within the stipulated time period. ...Orascom Telecom Bangladesh Ltd Vs. BTRC & ors, (Civil), 7 SCOB [2016] HCD 115 ....View Full Judgment

Value Added Tax Act, 1991
Sections 3(2), 56
Value Added Tax Rules, 1991
Rule 31
Encashment certificate cannot be treated as proceed realization certificate–– Transactions the respondent-writ petitioners as a local supplier supplied the construction materials to the local contractors on receipt of foreign currencies locally as per instructions of the locally floated tender. The goods were not shipped abroad against master Letter of Credit or any internationally accepted export documents. Consequently, the respondents failed to submit any proceed realization certificates against the claimed ‘deemed export’. Mere encashment certificate cannot be treated as proceed realization certificate. ––Observation of the High Court Division:
“We have already indicated that ‘deemed export’ is not an actual export. There is no L/C nor the goods go out of the country. Therefore, in case of ‘deemed export’ there cannot be export proceeds realisation certificate and they would be replaced by encashment certificate and that has been furnished in the instant case both to the respondents before filing of the writ petition and also before this Court as annexures.
It, therefore, appears to us that the transactions in question qualifies as ‘deemed export’ and they have fulfilled the requirements of repatriation of the sale proceeds through Bangladesh Bank.”
The judgment and order dated 17.08.2004 passed by the High Court Division in Writ Petition No.4132 of 2002 is hereby set-aside. ––The appellants VAT authority can make demand for the evaded VAT amount and cancel the rebate illegally availed by the writ-petitioners. .....National Board of Revenue(NBR) =VS= Rahim Steels Mills Co.(Pvt) Ltd., (Civil), 2023(1) [14 LM (AD) 539] ....View Full Judgment

Section 3(3) of the Act VAT being an indirect tax is to be borne by the consumer or receiver of the service unless the contract otherwise provides.
It is true that section 3(3) of the Act places the burden of the tax upon the service receiver to pay the tax. But the Act does not say that the service renderer can not pass on the tax burden to service receiver. The burden of the tax is temporarily fixed on the service renderer for the facility of tax collection and to prevent tax evasion and is no bar in the service renderer to re-imburse it form the service receiver, who has to bear the burden ultimately.
M/S. A.A. Engineering Ltd. -Vs.- University of Khulna 3 ALR(2014)(1)(AD) 139

read with Finance Act, 1999 Section 7(18)
It appears from the record that the petitioner challenged the imposition of 15% supplementary duty and 4% flood surcharge on t he same on the imported goods as has been fixed by the third schedule under Section 7 of the VAT Act. It also further appears that Section 7 of the VAT Act as amended has authorized the Government to impose supplementary duty and there is nothing on record to show that the imposition of supplementary duty at the rate of 15% as well as the imposition of flood surcharge on the supplementary duty is not authorized by any law or is otherwise bad in the eye of law. The imposition of the supplementary duty under the authority of Section 7 of the VAT Act being an official Act has due sanction of law. M/S. Madina Trading Corp. Vs. Commissioner of Customs &Anr 17 BLT (AD) 298.

Since the admitted allegation against the petitioners is that in spite of the increase of price of the raw materials as reflected from the concerned bills of entries and assessment orders thereon, the petitioners did not make any corresponding increase in the declared price of the finished products and since such circumstance was not evidently mentioned under any clauses from Clauses-‘Ka’ to ‘Ta’ under sub-section (1) of Section 9, we do not find as to how the directions of the concerned officers for readjusting the current account register of the petitioner, or for depositing certain amount through treasury challan, was amenable to the alterative remedy of written objection in view of the provisions under sub-section (2ka) of Section 9. ...City Vegetable Oil Mils Ltd & ors Vs. Commissioner, CEV & ors, (Civil), 3 SCOB [2015] HCD 108 ....View Full Judgment

Value Added Tax Act, 1991
Section 9 And
Clause-Gha of Rule 22(1) of the VAT Rules, 1991:
Provisions under sub-section (2) of Section 9 provides that if someone takes rebate in the prohibited circumstances mentioned under sub-section (1), such rebate can be rejected by the concerned officer, who may also direct such person to do necessary adjustment in the current account register, namely Mushak-18, as required to be maintained in view of the provisions under Clause-Gha of Rule 22(1) of the VAT Rules, 1991. This sub-section (2) of Section 9 speaks about only for issuance of direction, not for direct action of adjustment in the current account register. ...City Vegetable Oil Mils Ltd & ors Vs. Commissioner, CEV & ors, (Civil), 3 SCOB [2015] HCD 108 ....View Full Judgment

The High Court Division observed:
“The present writ petition without preferring any objection/appeal under section 9(2ka)/42 of the VAT Act is not also maintainable.” We find no reason to interfere with the impugned judgment of the High Court Division. …Aftab Automobiles Limited Vs. Super, Customs, Excise and VAT, (Civil), 1 SCOB [2015] AD 24 ....View Full Judgment

The High Court Division observed–
“The present writ petition without preferring any objection/appeal under section 9(2ka)/42 of the VAT Act is not also maintainable.” We find no reason to interfere with the impugned judgment of the High Court Division. .....Aftab Auto. Ltd =VS= Customs, Excise & VAT, Tejgaon Circle-1, (Civil), 2016-[1 LM (AD) 177] ....View Full Judgment

A Statute, which takes away or impairs any vested right acquired under existing law, is always deemed to be prospective. The general rule being that without a clear indication from the wordings of a statute, the statute is not to receive retrospective effect. Govt. of Bangladesh Vs. Apex Weaving & Finishing Mills Ltd. 12 BLT (AD)-77 .

VAT Act, 1991
Section 13
VAT Rules, 1991
Rule 31A, 38
Constitution of Bangladesh, 1972
Article 104
A Statute which takes away or impairs any vested right acquired under existing law, is always deemed to be prospective. The general rule being that without a clear indication from the wording of a statute, the statute is not to receive retrospective effect– On perusal of the concerned parent act, rules and the aforementioned delegated legislations our considered view is that the Annexure-E(4)is inconsistent with provisions spelled out in the parent Act and Rules. At the same time the impugned explanation is the true and exact expression of what enacted in the parent Act and Rules. In addition, it is a revenue generating issue of the state. Public and higher State interest cannot be defeated for the sake of misleading subordinate legislation and procedural glitches. If these are the situations, as the highest court of the land, Appellate Division opines that this Division should invoke its mandate under article 104 of the Constitution of Bangladesh for doing complete justice for the national interest.
Considering the vagaries of legal proceedings and the technicalities involved in adjudication, Art 104 of the Constitution has invested, as a measure of abundant caution, the last Court of the country with wide power, so it may forestall a failure of justice and do complete justice in an appropriate case. It is an extraordinary procedure for doing justice for completion of or putting an end to a cause or matter pending before this Court. Appellate Division finds that the impugned judgment and order of the High Court Division do call for interference. In the result, the Civil Petition for Leave Appeal is disposed of. Impugned judgment and order of the High Court Division is set aside without any order as to cost. .....National Board of Revenue(NBR), Dhaka =VS= BSRM Steels Ltd., (Civil), 2022(2) [13 LM (AD) 246] ....View Full Judgment

Value Added Tax Act, 1991
Sections 15(4), 6(4KaKa) r/w
Value Added Tax Rules, 1991
Rule 18(Uma) r/w
The Telegraph Act, 1885
Section 4 r/w
Bangladesh Telecommunication Regulatory Act
Section 55(3) r/w
Regulatory and Licensing Guidelines for Renewal of Cellular Mobile Phone Operator License (Guidelines, 2011)
The BTRC is given responsibility to collect VAT from the Cellular Mobile Phone Operators and deposited it to the Government exchequer. As such, there is no scope to withhold the VAT collected at source by the Grameenphone.
Government, local authorities, the organization of local authority or organization those who are working for the Government are exempted from payment of VAT. The NBR, postal department, Bangladesh Bank, City Corporation and land revenue authority although engaged in realization of VAT through deduction at source bearing no registration under VAT Act, 1991 and thus the BTRC being Government organization is also exempted from payment of VAT under Clause-7 (Ab¨vb¨ †mev)(N) of the second schedule of the VAT Act, 1991 and compulsory VAT registration is not necessary for BTRC.
“the BTRC’s contained non-registered status for VAT purposes appears anomalous in the facts and circumstances. This Court being of the view that such situation needs immediate attention to avoid any further confusion in the implementation of the Deduction at Source Scheme in particular. It is also noted that the BTRC itself on occasion has contributed to such confusion arising by making ill-advised assertions as to its status within the VAT regime. This Court finds in this respect that circumstances now dictate a compulsory registration of the BTRC by application of Section 15(4) of the Act. Both the NBR and the BTRC are hereby put on notice to ensure such registration by application of Section 15(4) without undue delay. Given the findings in this judgment it is directed that such registration shall be deemed to be effective from the date the BTRC notified the petitioner of award of license and payment of License Renewal Fee and Spectrum Assignment Fees without any deduction i.e. from 17.10.2011.”
-are hereby expunged. .....Grameenphone Ltd. =VS= Bangladesh Telecommunication Regulatory Commission, (Civil), 2023(1) [14 LM (AD) 563] ....View Full Judgment

We find from the judgement of the High Court Division that upon scrutiny of section 26(1) and 48 of the VAT Act, 1991 it found that responded No.2 and Al-haj Taibur Rahman did not have the authority to make any search and seizure. It was further observed that section 48 of the Act does not empower the NBR to authorise respondent Nos. 1 and 2 to make such search and seizure as they are not VAT officers. Hence, the report dated 28.03.2002 emanating from such illegal search and seizure prepared and issued by respondent No.2 are illegal, without jurisdiction and coram non judice.
We are of the view that the High Court Division was correct in holding that neither respondent No.2 nor the said Al-haj Md. Taibur Rahman were authorised under section 26 or section 48 of the Act to enter the premises of the respondent company for the purpose of search and seizure. ...Customs Intelligence and Investigation,Dhaka =VS= Opsonin Chemical Industries Ltd., (Civil), 2021(1) [10 LM (AD) 270] ....View Full Judgment

Section 26(1) of the Act permits any VAT officer authorised by the Commissioner or Divisional Officer to conduct search and seizure upon serving notice. The proviso to the said section permits the Commissioner or Divisional Officer, upon giving reasons, to authorize any VAT Officer not below the rank of Superintendent to carry out search and seizure without giving notice. In the facts of the instant case we note that writ respondent No.2, who conducted the search and seizure was a Joint Director of Customs Intelligence and Investigation and not a VAT Officer. We further note that Md. Taibur Rahman, who headed another team and conducted search and seizure of the appellant company, was a Superintendent of Customs Excise and VAT.
Clearly section 48 of the Act provides that NBR can direct search and seizure to be conducted by a VAT Officer not below the rank of Assistant Commissioner to carry out search and seizure. ...Customs Intelligence and Investigation,Dhaka =VS= Opsonin Chemical Industries Ltd., (Civil), 2021(1) [10 LM (AD) 270] ....View Full Judgment

The Comptroller and Auditor-General has power to examine the records of the importers and other business houses despite payment of duties and VAT–– Appellate Division modify the operating part of the judgment of the High Court Division to the extent that if the audit department finds irregularities in the assessment of VAT and other duties, it shall ask the Board of Revenue to supply the relevant documents of the VAT payers and the Board of Revenue shall hand over the documents to the audit department. The assessees are not under obligation to furnish or submit documents directly to the Comptroller and Auditor-General. The documents shall be furnished through the Board of Revenue. The accounts department cannot ask any business organizations or persons to submit documents for the purpose of accounting for ascertaining as to whether they paid VAT in accordance with law. .....National Board of Revenue, Bangladesh =VS= Otobi Limited, (Civil), 2023(1) [14 LM (AD) 395] ....View Full Judgment

A notice under section 37 of the VAT Act cannot be issued without first determining the amount of evaded VAT if any. In doing so the authority have to issue notice under section 55(1) of the VAT Act 1991, claiming the evaded VAT and after giving an opportunity of hearing to the party concern, determine the amount of evaded VAT, under section 55(3) of the VAT Act 1991. After such determination of evaded VAT if the defaulter fails to repay the evaded VAT, only then, can proceed under section 37 along with other provisions of the VAT Act. ...Shuvash Chandra Das Vs. Customs, Excise & VAT App. Tribunal & ors, (Civil), 4 SCOB [2015] HCD 171 ....View Full Judgment

VAT Act, 1991
Sections 37, 42 and 55
Customs Act, 1969
Sections 193, 194, 196, 196A, 196B, 196C
In order to file an appeal under section 42 of the VAT Act the percentage of the demanded VAT and or the penalty as mentioned therein must be deposited at the time of filing the appeal and in absence of such deposit an appeal cannot be accepted–– 18 MLR AD 356 wherein this Division had reiterated: “The question involved in these two leave petitions squarely came up for consideration by this Division in Civil Petition for Leave to Appeal No. 896 of 2009 and in that case after considering the provisions of sections 37, 42 and 55 of the VAT Act, 1991 and sections 193, 194, 196, 196A, 196B, 196C of the Customs Act, 1969 this Division held that "Therefore, the intention of the legislature is very clear that in order to file an appeal under section 42 of the VAT Act the percentage of the demanded VAT and or the penalty as mentioned therein must be deposited at the time of filing the appeal and in absence of such deposit an appeal cannot be accepted. So, no illegality was committed either by the Commissioner (Appeal) in not accepting the appeal or by the Appellate Tribunal in directing the petitioner to deposit the demanded VAT as per the VAT Act and deposit the treasury chalan of such deposit by 18.04.2007" and on the above view the judgment and order passed by the High Court Division was affirmed and the leave petition was dismissed. We find no reason to take a different view from the view taken in the said leave petition and therefore, we find no merit in the leave petitions. Accordingly, both leave petitions are dismissed.”
Further in the case of JMS Glass Industries Ltd. Vs. Customs, Excise and VAT Appellate Tribunal 64 DLR AD 43 it was also held that the provisions of Section 194 of the Custom Act, 1969 cannot be attracted or applied for the purpose of waiving/dispensing with the statutory deposit as provided in sub-section (2) of section 42 of the VAT Act, it being an independent statue.
It is clear that the Tribunal shall only follow the procedure of the Custom Act only when the appeal presented to it with the required deposit under the VAT Act and with all the trappings of the custom Act as far as it is applicable. After filing of the appeal, it does not contemplate prevailing procedure of the appeal. That is to say requirement before filing to be construed as it is. .....Customs Excise and VAT, Ctg. =VS= Abul Khair Steel Mills Ltd., (Civil), 2023(2) [15 LM (AD) 627] ....View Full Judgment

Show Cause Notice– A well settle principle of law that where there existed statutory appellate provision, a writ petition would not normally be maintainable until appellate forum was exhausted. That point of view the High Court Division was right to say that the matter should be resolved by the respondent first, where it would be open to the petitioner to raise all the factual and legal issues, mentioned in the writ petitions. Facts and issues being same in both the petitions, they are accordingly, dismissed. Pointed out, the respondents can not lodge such case before the matter is fully and finally resolved after hearing the petitioner. How can the respondents file such a case before taking a final decision on the questions raised through the “Show Cause Notice” after hearing the petitioner. The respondents must shun such practices. ...Wata Chemical Ltd. =VS= Customs, Excise and VAT Commissionerate, Dhaka, (Civil), 2021(2) [11 LM (AD) 95] ....View Full Judgment

The Customs Act, 1969
Section 196 r/w
The VAT Act, 1991
Section 42
Admittedly an alternative remedy in the form of appeal was available to the writ petitioner– In violation of Section 31 of the Act passed the impugned order dated 01.08.2006 directing the Company to pay an amount of Tk. 2,53,36,161/- as evaded / unpaid VAT and Tk. 3,00,00,000/- as fine i.e. a total amount of Tk. 5,53,36,169/- only under section 37(2) of the Act. Hence, was the writ petition. The Customs and VAT authority has jurisdiction to consider the computer print-out of the monthly statements of sale obtained from the office computer of the Company duly singed by the Deputy Managing Director of the Company as information/evidence for deciding VAT. The Mushak chalans were also placed before the Customs Authority. It was also found that admittedly an alternative remedy in the form of appeal was available to the writ petitioner under Section 196 of the Customs Act read with Section 42 of the VAT Act before the Appellate Tribunal which the writ petitioner did not avail of. Could not place before us any new ground or discover any new evidence for review of our earlier decision. The review petition is dismissed. .....Sagar Chemical & Paint Industries Ltd. =VS= Bangladesh, [4 LM (AD) 325] ....View Full Judgment

The VAT Act
Section 42(1) (Ka), 42(2) (Ka) r/w
The Constitution of Bangladesh
Article 102
Any person aggrieved by the decision or order passed by the Commissioner, Additional Commissioner or any VAT Official lower in the rank of the Commissioner or Additional Commissioner can prefer appeal to the forum prescribed in the section. In the instant case the writ-petitioner impugned adjudication order dated 15.08.2007 passed by the writ-respondent no.2 Assistant Commissioner, Customs, Excise and VAT Division, Kushtia which is an appealable order under section 42(1)(Ka) of the VAT Act and section 42(2)(Ka) mandates that 10% of the demanded VAT is to be deposited at the time of filing of the appeal. When there is a statutory provision to avail the forum of appeal against an adjudication order passed by the concern VAT Official then the judicial review under Article 102(2) of the constitution bypassing the appellate forum created under the law is not maintainable. …Commissioner, Customs, Excise and VAT Com. & ors. Vs. Perfect Tobacco Co. Ltd, (Civil), 16 SCOB [2022] AD 84 ....View Full Judgment

The Value Added Tax Act, 1991
Sections 42 (2)(Kha)
Customs Act, 1969
Section 196
Constitution of Bangladesh, 1972 Article 102
Non-payment of deposit of 50% of the demand as a precondition for admission of appeal–– Law clearly has made provision for depositing 50% of the demanded amount at the time of filing appeal before the VAT Appellate Tribunal, which is condition precedent. The High Court Division has given gracious relief to the writ petitioner ignoring the proposition of law that the Court should not give benevolent construction of a statue when the provision is plain, unambiguous and does not give rise to any doubt as to its meaning. [Reference: Shyam Sundar and others vs Ram Kumar and another AIR, 2001 (SC) 2472].
When the intention of the legislature is clear, no consideration of expediency or possibility of abuse can be allowed to deviate from the natural consequences following the correct interpretation. Thus, the Court has no jurisdiction to exercise its discretion beyond the scope of law. Appellate Division is of an opinion that the High Court Division committed error of law in passing the impugned judgment and order. .....Customs, Excise & Vat Appellate Tribunal =VS= Chattala Industries Ltd., (Civil), 2023(1) [14 LM (AD) 623] ....View Full Judgment

Value Added Tax Act, 1991
Sections 42 (2)
Customs Act, 1969
Section 196
Finance Act, 1996
Finance Act, 1996 the Legislature has again amended section 42 (2) of the VAT Act inserting a mandatory provision of depositing 50% of the penalty or claimed amount at the time of filing the appeal before the Appellate Tribunal. .....Customs, Excise & Vat Appellate Tribunal =VS= Chattala Industries Ltd., (Civil), 2023(1) [14 LM (AD) 623] ....View Full Judgment

The Value Added Tax Act (VAT Act)
Section 42(1)(Ka) and sec. 42(2)(Ka)
The Limitation Act, 1908
Section 14
Our Apex Court in the case of TaeHung Packaging (BD) Limited and others Vs. Bangladesh and others, reported in 18 BLC (AD) (2013) 144, held: “The consistent views of this Division are that if any alternative remedy is available, the judicial review by the High Court Division in writ jurisdiction is not available with the exception that where the vires of a statutory provision is challenged or where the alternative remedy is not efficacious exercise of such power may be justified.” In the case of Champalal Binani Vs. the Commissioner of Income Tax, West Bengal & others, reported in AIR 1970(SC)645, the Indian Supreme Court observed that: “Where the aggrieved party has an alternative remedy the High Court would be slow to entertain a petition challenging an order of a taxing authority which is exfacie with jurisdiction. A petition for a writ of certiorari may lie to the High Court, where the order is on the face of it erroneous or raises question of jurisdiction or of infringement of fundamental rights of the petition.”
The respondent can still avail the statutory forum of appeal under section 42 of the VAT Act taking recourse of section 14 of the Limitation Act. Since we are already held that the writ petition is not maintainable as such refrained from going into merit of the case. Judgment and order dated 05.05.2016 passed by the High Court Division in Writ Petition No.1649 of 2012 is set aside. .....Customs, Excise and VAT Commissionerate =VS= M/S. Perfect Tobacco Company Ltd. , (Civil), 2022(1) [12 LM (AD) 271] ....View Full Judgment

Value Added Tax Act, 1991 (VAT Act)
Section 42(4), 55(1)
The Constitution of Bangladesh, 1972
Article 102(2)
Statutory forum provided in the statute which was competent to decide all questions of fact and law– From the demand cum show cause notice it is apparent that an adjudication process was initiated and the respondents sought time in writing to reply and thus the process awaiting adjudication. Against the adjudication order, forum of appeal is prescribed in the VAT Act. At this juncture, the writ petitions filed by the respondents as petitioners are not maintainable. The High Court Division lost sight of the pending adjudication process as such the impugned judgment and orders are not tenable in law. Article 102(2) of the Constitution provides that the High Court Division may give direction or orders under the Article where there is no other equally efficacious remedy provided by law. In view of the timeframe prescribed in section 42(4) of the VAT Act it cannot be said that the remedy under section 42 of the Act is not efficacious. Though the respondents had adequate remedy under the VAT Act which they could avail of but the respondents did not avail the statutory forum provided in the statute which was competent to decide all questions of fact and law. .....Ministry of Finance, Bangladesh =VS= Pragati Insurance Ltd., (Civil), 2022(1) [12 LM (AD) 309] ....View Full Judgment

Deposit of 25% of demanded VAT or penalty imposed at the time of filing an appeal.
Customs Act,1969(IV of 1969)
Sections 194(1) and 196
It is well - established that all fiscal statutes which deal with taxation contain provisions which are called charging section and others are termed machinery sections. Once the imposition or levy has been incurred, the machinery sections are to be construed and interpreted in a manner which would not defeat a tax. In the instant case, under section 42(1)(kha) of the VAT Act, 1991 the appeal was required to be filed before the Appellate Tribunal construed under section 196 of the Customs Act, 1969 with deposit of 25% of the demanded VAT. Sunshine Cables and Rubber Works Ltd. -Vs.- NBR 3 ALR(2014)(1)(AD) 177

The VAT Act, 1991
Section 55
Constitution of Bangladesh, 1972
Article 102(2)
When the entire action of the VAT authority appears to be illegal, mala fide and arbitrary on the face of the record, invoking article 102 of the Constitution, under such circumstances, without preferring statutory appeal, is no bar. Thus we are view that the High Court Division correctly held that the writ petition was maintainable and accordingly disposed of the matter. But the disposal in respect of asking the appellant to pay VAT and supplementary duty for the period from February, 2012-2013 to October, 2013-2014 is not in accordance with law.
Thus it is clear that since there is violation of law and fundamental right of a citizen in charging VAT and supplementary duty (SD) giving retrospective effect beyond the provision of law and since there is violation in demanding such duty/tax it cannot be said that the writ petition was not maintainable. These two civil appeals are allowed without any order as to costs. ...British American Tobacco Bangladesh Company Ltd. =VS= NBR, (Civil), 2021(1) [10 LM (AD) 257] ....View Full Judgment

No provision of the said Act of 1991 empowers the VAT authority to direct the petitioner as a VAT registered person to deliver any documents or records directly to any third party authority, i.e. Local and Revenue Audit Directorate. Neither a notice can be issued either directing and deposit of revenue or under section 55(1) of VAT Act on that Count. ...Singer BD Ltd & ors Vs. NBR & others, (Civil), 2 SCOB [2015] HCD 84
Thus the authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. The authority must genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. ...Singer BD Ltd & ors Vs. NBR & others, (Civil), 2 SCOB [2015] HCD 84 ....View Full Judgment

Section 56 cannot be construed or interpreted in an isolated manner. Section 55 and 56 must be read together and from a perusal of the same, it is evident that Section 56 is mandatorily preceded by Section 55 of the VAT Act, 1991 which prescribes the issuance of a Show- Cause Notice followed by other procedures and which is exhaustively laid out in the whole Section. The prescription said out in Section 55(1) (2)(3) are mandatory and no action or initiative can be taken or resorted to for realization of any unpaid, less paid or otherwise evaded etc amount, whatsoever under the provisions of Section 56 of the VAT Act, 1991, unless and until firstly the procedure laid out in Section 55 of the VAT Act has been exhausted by the authorities concerned. The principle of law is that Section 56 automatically presupposes a notice under section 55(1) of the Act, followed by the procedure laid out in Sub-section 2 & 3 of the said section 55 and which the respondents cannot avoid under any circumstances. ...Md. Sarowar Alamgir Vs. Bangladesh & Ors, (Civil), 3 SCOB [2015] HCD 137 ....View Full Judgment

Value Added Tax Act, 1991
Sections 55 and 67
Value Added Tax Rules, 1991
Rule 12 —After submission of the Bank Guarantee supported by an unconditional undertaking by all the directors of the petitioner company against the outstanding VAT liability, the claim for release of the Bank Guarantee is not tenable in law.
The Appellate Division held that it appears that the predecessor of the petitioner company did not raise any objection against the outstanding arrear VAT liability demanded by the respondent authority as contained in Annexure-E1 on the ground of non-compliance of procedure of the VAT Act before making the demand. In the circumstances of the case after submission of the Bank Guarantee No. 101TS1241LG07 dated 07.05.2007 for Tk. 2,75,42,815.02 supported by an unconditional undertaking by all the directors of the petitioner company against the outstanding VAT liability of Tk. 2,75,42,815.02 the claim for release of the Bank Guarantee is not tenable in law. However, the petitioner company can claim refund of any mistaken payment or excessive payment in respect of VAT turn-over tax or any other dues if any to the respondent authority as envisaged in Section 67 of the VAT Act.
Nuvista Pharma Limited -Vs.- The Chairman, National Board of Revenue and others (Civil) 12 ALR (AD) 49-54

Order of adjudicating authority is appealable —
Writ Petition does not lie without exhausting the remedy of appeal
Since the adjudicating order passed by the Commissioner of Excise, Customs and VAT is an appealable order, the Writ Petition filed without exhausting the remedy of appeal is not maintainable. Messers Chemico Laboratories Ltd. represented by its Chairman -Vs. Government of Bangladesh represented by the Secretan/ Ministn/ of Finance and others 11 MLR (2006) (AD) 192.